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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 10-16061
ZL TECHNOLOGIES, INC.,
Plaintiff-Appellant,
v.
GARTNER GROUP, INC. and CAROLYN DICENZO, Defendants-Appellees.
On Appeal from the United States District Court for the Northern District of California
Case No. 5:09-cv-02393-JF The Honorable Jeremy Fogel, Presiding
APPELLANT’S OPENING BRIEF
JAMES M. WAGSTAFFE (CA BAR NO. 95535) MICHAEL K. NG (CA BAR NO. 237915)
DANIEL A. ZAHEER (CA BAR NO. 237118) KERR & WAGSTAFFE LLP
100 Spear Street, Suite 1800 San Francisco, CA 94105
Tel: (415) 371-8500 Fax: (415) 371-0500
Attorneys for Plaintiff-Appellant ZL TECHNOLOGIES, INC.
Corporate Disclosure Statement
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Plaintiff-
Appellant ZL Technologies, Inc. certifies that no publicly held corporation owns
10% or more of the stock of ZL Technologies, Inc.
i
Page
TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................... 1
II. JURISDICTIONAL STATEMENT ................................................................... 2
III. ISSUE PRESENTED FOR REVIEW ................................................................ 2
IV. STATEMENT OF FACTS ................................................................................. 3
V. STATEMENT OF THE CASE .........................................................................10
VI. STANDARD OF REVIEW ..............................................................................12
VII. SUMMARY OF ARGUMENT ........................................................................13
VIII. ARGUMENT .................................................................................................14
A. DISMISSAL IS WARRANTED ONLY IF NO REASONABLE JUROR COULD CONCLUDE THAT THE REPORTS IMPLY A FACTUAL ASSERTION ........................................................................... 14
B. OPINIONS ARE ACTIONABLE IF THEY IMPLY AN UNDISCLOSED FACTUAL BASIS ............................................................ 18
C. THE TOTALITY OF CIRCUMSTANCES PRECLUDE DISMISSAL OF THE COMPLAINT ............................................................................. 25
1. Broad Context ........................................................................... 25
2. Specific Context ........................................................................ 29
3. Susceptibility to Being Proven True or False ........................... 30
D. THERE IS NO EXEMPTION FROM DEFAMATION LIABILITY FOR NON-TRANSPARENT ANALYSIS ..................................................... 32
IX. CONCLUSION .................................................................................................35
ii
TABLE OF AUTHORITIES
Page Cases
al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) ......................................................................... 12, 22
Condit v. National Enquirer, Inc., 248 F.Supp.2d 945 (E.D. Cal. 2002) ............................................................. 20, 23
Doe v. Untied States, 419 F.3d 1058 (9th Cir. 2005) ....................................................................... 12, 15
Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144 (2d Cir. 2000) .................................................................... 16, 21, 26
Flentye v. Kathrein, 485 F.Supp.2d 903 (N.D. Ill. 2007) ......................................................................24
Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002) ................................................................. 15, 16, 34
Gardner v. Martino, 563 F.3d 981 (9th Cir. 2009) ......................................................................... 30, 32
Gill v. Hughes, 227 Cal. App. 3d 1299 (1991) ..............................................................................21
Johnson v. Clark, 484 F.Supp.2d 1242 (M.D. Fla. 2007) .................................................................24
Kaelin v. Globe Communications Corp., 162 F.3d 1036 (9th Cir. 1998) ....................................................................... 22, 23
Kelly v. Schmidberger, 806 F.2d 44 (2d Cir.1986) ....................................................................................15
Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) ................................................................. 17, 25, 30
Manufactured Home Communities, Inc. v. County of San Diego (“MHC”) 544 F.3d 959 (9th Cir. 2008) ........................................... 15, 16, 21, 22, 24, 31, 35
McBride v. Merrell Dow & Pharms Inc., 717 F.2d 1460 (D.C.Cir.1983) .............................................................................15
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) .............................................................. 2, 13, 16, 18, 28, 29, 30
Mzamane v. Winfrey, 693 F.Supp.2d 442 (E.D. Pa. 2010) ......................................................................21
iii
Overstock.com, Inc. v. Gradient Analytics, Inc., 151 Cal. App. 4th 688 (2007) .................................................................. 24, 28, 29
Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995) ....................................................... 15, 19, 27, 28, 30
Posadas v. City of Reno
Pub. Utility Dist. No. 1 v. Idacorp Inc., 379 F.3d 641 (9th Cir. 2004) ................................................................................13
, 109 Nev. 448 (1993) .............................................................................................15
Rodriguez v. Panayiotou, 314 F.3d 979 (9th Cir. 2002) ............................................................. 10, 14, 16, 31
Standing Committee on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995) ....................................................... 19, 28, 32, 33, 34
Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110 (9th Cir. 2003) ..............................................................................21
Swengler v. ITT Corp., 993 F.2d 1063 (4th Cir. 1993) ..............................................................................28
Unelko Corp. v. Rooney
Statutes
, 912 F.2d 1049 (9th Cir. 1990) ..................................................... 13, 17, 19, 20, 22
28 U.S.C. § 1291 ........................................................................................................ 2
28 U.S.C. § 1332 ........................................................................................................ 2
Other Authorities
1 Robert D. Sack, Sack on Defamation
2 Callman on Unfair Competition Trademarks & Monopolies § 11:5 (4th ed. 2010) ............................................................................................20
§ 4:3.1 (4th ed. 2010) ...............................25
Restatement (Second) of Torts § 566 cmt. c ............................................... 24, 32, 33
1
I. INTRODUCTION
Appellee Gartner, Inc., a technology research and consulting firm, publishes
the Magic Quadrant Report (“the Report”), a product guide that is relied upon by
large enterprises to make critical software purchasing decisions. Gartner claims
that the Report is the end result of a sophisticated and reliable analysis that,
through consideration of a vast quantity of undisclosed factual data, tells Gartner’s
readers which is the best software product to buy. However, in spite of its
assurances regarding the reliability of the Report, Gartner has repeatedly and
falsely claimed that products sold by Appellant ZL Technologies, Inc. lag far
behind its competitors’ products in terms of objective performance. Gartner has
given much more favorable reviews to products that are inferior to ZL’s products
by every pertinent measure, but are made by companies with which Gartner has
close economic ties.
The district court granted Gartner’s motion to dismiss ZL’s first amended
complaint for defamation and trade libel without leave to amend, holding that
Gartner’s Reports consist mainly of opinions which are not actionable as a matter
of law. But it is well settled that opinions are actionable so long as they imply the
existence of undisclosed objective facts. That is precisely the case here: Gartner’s
Reports are understood as providing objective factual descriptions of product
performance based upon undisclosed factual data. A product reviewer like Gartner
2
cannot escape liability for publishing false and damaging statements merely by
concealing the basis for its conclusions or by using fine-print disclaimers. ZL
respectfully requests that this Court reverse the judgment of the district court, and
reaffirm what the Supreme Court articulated some time ago: that there is no
constitutional loophole for statements that might be labeled “opinion.” Milkovich
v. Lorain Journal Co.
II. JURISDICTIONAL STATEMENT
, 497 U.S. 1, 18-22 (1990).
The district court had subject matter jurisdiction pursuant to 28 U.S.C. §
1332, in that this is a civil action between citizens of different states in which the
amount in controversy exceeds $75,000. This court has appellate jurisdiction over
the district court’s final judgment granting Gartner’s motion to dismiss. See
III. ISSUE PRESENTED FOR REVIEW
28
U.S.C. § 1291. The district court’s final judgment was entered May 3, 2010.
Appellant’s Excerpts of Record (“ER”) 162. ZL’s timely notice of appeal followed
on May 6, 2010. ER 164-65.
1. Whether a reasonable factfinder could conclude that any of the Magic
Quadrant Reports implies a factual assertion that ZL’s products are inferior to its
competitors’ products in terms of objective performance.
2. Whether Gartner can, at the pleadings stage, escape liability for its
defamatory statements of fact through fine-print, boilerplate disclaimers stating
3
that the Reports are nothing more than unreliable conjecture, which contradicts
Gartner’s more prominent statements that the Reports are reliable, fact-based and
grounded in rigorous analysis.
IV. STATEMENT OF FACTS
Gartner is the largest and most influential provider of research and analysis
of information technology products. ER 117. The company bills itself as “the
world’s leading information technology research and advisory company,”
supplying “research and analysis” to its customers on subjects including
“technology acquisition and deployment.” Id. The large institutions that make up
the market for enterprise-level software products rely heavily on Gartner when
making their purchasing decisions. In Gartner’s words, “to many, we are the
Buyers of enterprise software applications, like the email archiving software
at issue in this case,
IT
research company. Thousands of companies and government agencies worldwide
will not make major IT decisions without asking, ‘What does Gartner say?’” ER
118 (emphasis in the original).
1
1 Email archiving software allows large enterprises to store, index, search and extract email data from their computer networks. ER 115. With the rapid growth of email usage by companies, governments and other organizations, such software has become a crucial tool for storing, organizing and accessing email data. ER 116. These capabilities are particularly important for enterprises subject to governmental regulatory regimes and litigation discovery obligations that require preservation and production of email data. Id.
look to Gartner because Gartner digests its product analysis
4
into a form that summarizes the most salient criteria that should enter into the
reader’s buying decision. ER 117-22. The end result of that process is Gartner’s
“Magic Quadrant Report,” an annual review which sets out the company’s
conclusions about the quality of software products in a visual matrix (the “Magic
Quadrant”). ER 118-20. For example, Gartner’s 2007 Magic Quadrant for email
archiving software appears as follows:
ER 43.
The readers of the Reports use the ratings to tell them which email archiving
and other enterprise-level software products to purchase. ER 117-18. Gartner tells
readers that its research shows them “how to buy, what to buy, and how to get the
5
best return on your technology investment.” Id.
That understanding is encouraged by the language in the Reports. For
example, in the introductory summary to the 2007 Magic Quadrant Report, titled
“What You Need To Know,” Gartner describes the criteria it uses to create the
Magic Quadrant. ER 42. It states that the Report ranks “enterprise-class products”
by focusing on the products’ “scalability,” that is, “their ability to address the need
of a market looking to support hundreds and thousands of users” and to tackle “the
complexity of deploying and managing growing archives,” as well as the products’
“functionality,” that is, the features offered by a product, with particular focus on
those features needed by large, growing enterprises.
The Reports, and most
prominently the Magic Quadrants themselves, are understood by Gartner’s readers
as providing accurate and factual analysis of which email archiving software
products perform the best according to objective performance measures. ER 41,
42, 45, 121, 129, 131.
Id. The introduction also
describes other objective criteria used in evaluating email archiving products,
including the stability of the code underlying the product, the accuracy and
completeness of the search, and the speed of the product. Id. (explaining the
importance of “[c]ode quality,” “stable code,” “code problems,” “time to create . . .
indexes,” “time to search them,” “time . . . to accomplish the archiving” and “full
capture of messages” in differentiating products). In sum, Gartner tells its readers
6
that the Reports provide exactly what they want to know: which email archiving
product is best.
The Magic Quadrant is oriented along two axes: “Ability to Execute” and
“Completeness of Vision.” ER 43. As Gartner explains, the “Ability to Execute”
axis primarily reflects the two performance measures that are most important to the
email archiving software consumer: (1) product performance (i.e., accuracy, speed,
search completeness, scalability, cost and features), and (2) company
responsiveness (i.e., whether the company is stable enough and sufficiently
committed to customer service to ensure good product support today and in the
future). ER 45, 120-21. The Report states that “Ability to Execute” emphasizes
“[p]roduct capabilities,” including “basic and advanced functionality,” “scalability
and storage management capabilities, mailbox management, compliance
supervision, legal discovery and integration of other related technologies.” ER 45.
The “Completeness of Vision” axis focuses on the company’s general business
model, evaluating some forward-looking criteria such as “market strategy” and
“geographic strategy.” ER 46, 120. It also consists of some retrospective data, in
particular an evaluation of which products have been quickest to adopt features
catering to new market demands. ER 43.
Gartner actively encourages its readers to understand the Reports as setting
forth objective, factual evaluations of product performance. In SEC disclosures
7
and elsewhere, Gartner proclaims that its research is “fact-based,” and “objective,”
and that its research methodology ensures “ultimate objectivity.” ER 121-22.
With respect to the Reports in particular, Gartner tells its customers that the
analyses are based on a “rigorous mathematical model,” and invites vendors to
correct any “factual errors” contained in the Reports. ER 121.
At the same time that it touts the rigorousness of its analysis and the
dependability of its conclusions, Gartner conceals the purportedly vast array of
factual data underlying its ratings and the structure of its analytical method. ER
122-23. And, in direct contradiction to its claims that the Report is fact-based and
that companies can rely upon it, Gartner includes in the Report a boilerplate, fine-
print disclaimer in a tiny, condensed font stating that although “[t]he information
contained herein has been obtained from sources believed to be reliable,” Gartner
nonetheless “disclaims all warranties as to the accuracy, completeness or adequacy
of such information.” ER 41. Gartner’s fine-print disclaimer further states that
“[t]he opinions expressed herein are subject to change without notice.”
Gartner’s Report for email archiving has consistently ranked Symantec
Corporation’s email archiving software as far superior to its competition, and in
particular to the products made by ZL. ER 43, 58, 75. For example, in 2007, the
Report placed Symantec first and ZL ninth out of fifteen ranked vendors in terms
of “Ability to Execute,” which measures product performance. ER 43. Symantec,
Id.
8
which has limited and outdated software features, also ranked first in terms of
“Completeness of Vision,” which reflects product functionality. Id. ZL’s
software, which offers a superior array of features, ranked thirteenth out of fifteen
in terms of “Completeness of Vision.” Id.
Even more important than Symantec’s and ZL’s respective numerical
rankings is the magnitude of Symantec’s purported superiority according to
Gartner. In terms of “Ability to Execute,” Symantec received a vastly superior
score to ZL in each of the Report years at issue in this case. ER 43, 58, 75.
Indeed, in the 2007 and 2008 Reports, Symantec stood alone as a “Leader” in
email archiving software, with no other software coming remotely close to
matching its purportedly extraordinary performance and array of features. ER 43,
58. The unmistakable message sent to readers is that Symantec’s software
dominates other vendors’ software in all important performance attributes, making
Symantec the clear choice for any email archiving software consumer.
In plain speech, readers of Gartner’s email archiving Reports understand that
Symantec’s email archiving product “works” far better than ZL’s product and other
products. This is a demonstrably false statement of fact for several reasons:
• ZL’s product is superior in terms of the objective performance
attributes that are most important to the enterprise software consumer.
These factors, which Gartner states are reflected in the Reports, are:
9
(1) search speed; (2) scalability; (3) search accuracy; (4) completeness
of search; and (5) cost. ER 116, 130-31. For example, if ZL’s
Unified Archive (“UA”) product is compared to Symantec’s
Enterprise Vault program, ZL’s product is superior in terms of speed
(UA is 1,000 times faster), scalability (UA scales to one to two orders
of magnitude higher), accuracy (UA searches produce more of what
the user is looking for and fewer unwanted results), completeness (UA
loses fewer emails) and cost (UA consumes half the server, storage
and overhead cost). ER 116-17.
• ZL’s products provide the broadest array of features and functionality
in the market, and more features and functionality than Symantec’s
product. ER 116, 130-131. Symantec’s product is based on outdated
search technology while ZL’s product employs up-to-date code. ER
130-31. ZL’s product features are superior by objective measures to
the features offered by Symantec. ER 131.
• ZL’s products are superior in satisfying the needs of large-scale
enterprises. ER 116. ZL’s software has succeeded in large-scale
environments in which its competitors’ products have failed.
• ZL’s customer service is superior to its competitors. ER 117. ZL has
a superior product and organizational architecture which results in
Id.
10
shorter times to resolve problems than its competitors, measurably
higher customer satisfaction and by far the industry’s lowest rate of
customer loss.
• ZL operates in the same customer and geographic markets as
Symantec. ER 129.
• ZL’s product appeals to a broader customer base than Symantec’s in
that ZL’s product is compatible with far more operating systems,
email platforms and database environments than Symantec’s. ER
129. Symantec’s product only runs a single email platform and a
fraction of the operating system and database environments that are
compatible with ZL’s product.
V. STATEMENT OF THE CASE
Id.
On May 29, 2009, ZL filed a complaint against Gartner and Gartner’s lead
analyst for email archiving products, Carolyn DiCenzo. ER 1-37. The complaint
alleged causes of action under California law for defamation, trade libel, false or
misleading advertising, unfair competition and negligent interference with
prospective business advantage, as well as federal law claims under the Lanham
Act. ER 92. Gartner moved to dismiss the complaint, arguing with regard to the
defamation claims that its statements were protected opinion under the First
Amendment and the California Constitution. ER 100; see Rodriguez v.
11
Panayiotou
In its dismissal order, the district court concluded that ZL’s defamation
claims were barred because the statements at issue in Gartner’s Reports are pure
statements of opinion. ER 99-106. In particular, the district court viewed “the
general tenor of the MQ Report [as] negat[ing] the impression that Gartner is
asserting an objective fact[.]” ER 101. In so holding, the district court relied upon
a fine-print disclaimer in the Report labeling its analysts’ conclusions as mere
“opinions.”
, 314 F.3d 979, 985 (9th Cir. 2002) (explaining that the First
Amendment provides a defense to state law defamation claims). The district court
granted the motion, but also granted leave to amend with regard to ZL’s
defamation claims. ER 92-112.
Id. The district court further relied upon its determination that the
Reports are “subjective on their face.” ER 103. And, the court concluded that
although the Report might indirectly imply that ZL’s products perform poorly, its
statements were nonetheless not actionable because Gartner had not stated that
explicitly and directly. ER 104 (“There is no allegation that Gartner actually said
that ZL is not a good choice; instead, ZL claims that its placement in the MQ
Report would lead a customer to believe that ZL is not a good choice.”); Id. (“ZL
does not allege that Gartner ever stated that ZL’s offerings are significantly inferior
to Symantec’s products, only that an inference to that effect might be drawn by a
consumer.”). The court did, however, grant leave to amend. ER 112.
12
After ZL filed its First Amended Complaint, Gartner again moved to
dismiss. ER 114, 138. The district court granted the motion, and this time denied
leave to amend. ER 138-61. The court once again rejected the argument that
Gartner’s opinions were actionable because they relied upon and implied
statements of fact, this time stating that “[m]ost opinions are based at least in part
on facts” and “[t]hat Gartner considered facts in forming opinions does not mean
that the opinions are objectively verifiable.” ER 153. The court also premised its
dismissal on its conclusion that even though the Reports encompass some factual
information, the fact that they mix fact and opinion renders them non-actionable.
ER 155. And, while acknowledging that Gartner’s statements “undeniably rest
upon a large body of specific yet undisclosed facts,” the court concluded that they
are non-actionable because Gartner’s ultimate conclusions are opinions. ER 158.
VI. STANDARD OF REVIEW
This court reviews the district court’s grant of a motion to dismiss de novo,
asking whether the complaint states a claim to relief that is plausible on its face.
al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). In conducting this inquiry,
this court construes the complaint in the light most favorable to the plaintiff, taking
all allegations as true and drawing all reasonable inferences in the plaintiff’s favor.
Doe v. Untied States, 419 F.3d 1058, 1062 (9th Cir. 2005).
13
This court reviews the district court’s denial of leave to amend for an abuse
of discretion. Pub. Utility Dist. No. 1 v. IDACORP Inc., 379 F.3d 641, 646 (9th
Cir. 2004). The district court abuses its discretion unless “it is clear on de novo
review that the complaint could not be saved by amendment.”
VII. SUMMARY OF ARGUMENT
Id.
The threshold question in a defamation suit is whether “a reasonable
factfinder could conclude that the statement [at issue] implies an assertion of
objective fact.” Unelko Corp. v. Rooney
There is no “wholesale defamation exemption for anything that might be
labeled ‘opinion.’”
, 912 F.2d 1049, 1053 (9th Cir. 1990)
(citation, alterations and internal quotation marks omitted). Here, the district court
concluded that the Reports are not actionable because their “general tenor” and
disclaimers suggest that they consist mainly of opinion. This was error.
Milkovich, 497 U.S. at 18. Instead, it is well settled that a
statement of opinion is actionable in a defamation suit if it implies the existence of
a false factual basis. Unelko, 912 F.2d at 1053. In this case, Gartner encouraged
its subscribers to rely upon its Reports to make important software purchasing
decisions. A reasonable reader of the Reports, having paid thousands of dollars for
Gartner’s analysis, would understand that the Reports present professional and
fact-based reviews of those products, not conjectural statements about issues in
which the reader had no interest. Therefore, by stating that Symantec’s products
14
are vastly superior to ZL’s, Gartner either made actionable statements of fact or
provided actionable opinions implicitly suggesting the existence of a false factual
basis. On either basis, the First Amended Complaint readily satisfies this Circuit’s
test for legal sufficiency.
VIII. ARGUMENT
A. DISMISSAL IS WARRANTED ONLY IF NO REASONABLE JUROR COULD CONCLUDE THAT THE REPORTS IMPLY A FACTUAL ASSERTION
In granting Gartner’s motion to dismiss without leave to amend, the district
court incorrectly relied upon its own subjective reading of the Reports to determine
its understanding that the Reports set forth non-actionable, pure opinions.
Particularly at the pleading stage, the district court’s inquiry should have been
limited solely to determining whether any reasonable reader of the Reports could
conclude that they set forth a statement of fact, or set forth opinions that imply
reliance upon facts. When viewed in this light, the First Amended Complaint
should easily have withstood Gartner’s motion.
The generally forgiving rules of notice pleading apply equally to a claim of
defamation as to any other claim. See Rodriguez, 314 F.3d at 983. Thus, the court
may dismiss only if the plaintiff can allege no plausible claim for relief. See id.
The court is required to construe the complaint in the light most favorable to the
15
plaintiff, taking all its allegations as true and drawing all reasonable inferences
from the complaint in its favor. Doe
A court has only limited ability to hold at the pleading stage that a statement
is not defamatory as a matter of law. “It is error for a court to rule that a
publication cannot be defamatory on its face when by any reasonable interpretation
the language is susceptible of a defamatory meaning.”
, 419 F.3d at 1062.
Selleck v. Globe Int’l, Inc.,
166 Cal. App. 3d 1123, 1132 (1985). The issue is not “whether the court regards
the language as libelous, but whether it is reasonably susceptible of such a
construction.” Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986). Thus, “if a
statement is susceptible of different constructions, one of which is defamatory,
resolution of the ambiguity is a question of fact for the jury.” Flowers v. Carville,
310 F.3d 1118, 1128 (9th Cir. 2002) (quoting Posadas v. City of Reno
The court’s ability to determine that a given statement consists solely of
non-actionable, “pure” opinion is similarly constrained. The court may only
adjudicate the case as a matter of law if “no reasonable person could construe [the
statements] as provably false.”
, 109 Nev.
448 (1993)).
Manufactured Home Communities, Inc. v. County
of San Diego (“MHC”), 544 F.3d 959, 964 (9th Cir. 2008); see also Partington v.
Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995) (explaining that the applicable test is
“whether a reasonable factfinder could conclude that the statements imply a false
16
assertion of objective fact”). Thus, even if a district court is “correct in its
assessment that each of the[] statements [at issue] is properly interpreted as an
assertion of opinion,” that is still insufficient to take the matter from the jury if “a
reasonable factfinder could disagree with that assessment.” MHC, 544 F.3d at
964; see also Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 152 n.1 (2d
Cir. 2000) (“We must ask whether the alleged interpretation is reasonable, not
whether it is ‘most likely.’”). As this Court has explained, even when there are
“persuasive reasons” for concluding that particular statements set forth pure
opinion, the court cannot adjudicate the issue as a matter of law unless that is “the
only reasonable interpretation of the statements.” MHC, 544 F.3d at 964 & n.3
(emphasis in original) (citing Milkovich, 497 U.S. at 19); Flowers, 310 F.3d at
1128 (explaining that the proper determination for the court is whether the
nondefamatory meaning is the “only reasonable construction” (emphasis in
original)). The same approach is followed by California courts. Rodriguez
ZL’s allegations readily satisfy this test. The Reports tell readers that
Symantec’s products are vastly superior to ZL’s products, when in fact the
opposite is true. ER 116-117, 129, 130-31. The Reports indicate that the ratings
reflect the rated products’ scalability, speed, accuracy, functionality, code quality
and cost, and a reasonable reader of the Reports would understand them to reflect
, 314
F.3d at 986-87 (citing cases).
17
those attributes. ER 42, 57, 74, 120-21, 129, 131; see Unelko, 912 F.2d at 1055
(interpreting statement that product “didn’t work” from perspective of reasonable
audience member who would be “familiar with the product”); Knievel v. ESPN
To underscore the factual nature of the Reports, one need only to review the
Magic Quadrants themselves. In them, Gartner clearly and consistently represents
that Symantec obliterates its competitors. This carries the inescapable implication
that the magnitude of Symantec’s superiority is premised in the data which the
Reports purportedly reflect. Readers of the Reports would and do conclude from
this that Symantec makes the best email archiving product on the market, and that
no other product comes remotely close to Symantec’s. Those same readers would
understand that, given the yawning gap between Symantec’s products and other
software products, no rational enterprise would buy any product other than
,
393 F.3d 1068, 1077 (9th Cir. 2005) (interpreting statement on website from the
perspective of the intended “youthful audience”). Gartner’s business model
depends upon its audience believing its assurances that they can rely on the fact-
based Reports in making critical enterprise software purchasing decisions. ER
117-18. Given such assurances, the most obvious interpretation of the Reports is
as providing a factual assessment of product performance and functionality. At a
minimum, it would not be unreasonable for a reader of the Reports to interpret
them as reflecting the products’ performance.
18
Symantec’s. And, those same readers would reach this conclusion based upon
their understanding regarding what makes one product better than others (i.e.,
speed, accuracy, scalability, cost, etc.). At the very least, readers would not be
unreasonable to draw this conclusion. For these reasons, the judgment of the
district court should be reversed.
B. OPINIONS ARE ACTIONABLE IF THEY IMPLY AN UNDISCLOSED FACTUAL BASIS
Even if it were true that the Reports could be interpreted only as containing
“pure” opinions (which is not the case), the Reports are still actionable because
Gartner’s statements also imply the existence of undisclosed facts. The Supreme
Court has held that there is no “wholesale defamation exemption for anything that
might be labeled ‘opinion.’” Milkovich, 497 U.S. at 18. To erect what the Court
has called an “artificial dichotomy between ‘opinion’ and fact” would impair the
“important social values which underlie the law of defamation.” Id. at 19, 22.
These include the “pervasive and strong interest in preventing and redressing
attacks upon reputation.” Id. at 22. Courts must therefore always be mindful “that
expressions of ‘opinion’ may often imply an assertion of objective fact” which is
actionable. Id. at 18. Thus the statement “In my opinion John Jones is a liar” is an
actionable opinion because in uttering such a statement the speaker “implies a
knowledge of facts which lead to the conclusion that Jones told an untruth.” Id.;
see also Standing Committee on Discipline v. Yagman, 55 F.3d 1430, 1439 (9th
19
Cir. 1995) (holding that a statement of subjective opinion is actionable if it is
“based on implied, undisclosed facts”).
“[T]he threshold question in [a] defamation suit[] is not whether a statement
might be labeled ‘opinion,’ but rather whether a reasonable factfinder could
conclude that the statement implies an assertion of objective fact.” Unelko, 912
F.2d at 1053 (citation and internal quotation marks omitted). In order to qualify as
a nonactionable “pure” opinion, a statement must not only be framed on its face as
an opinion, but it also must “not imply facts capable of being proved true or false.”
Partington, 56 F.3d at 1153 n.10 (citation omitted). Furthermore, “[e]ven in
contexts in which the general tenor of the work suggests that the author is
expressing personal opinions, it is possible that a particular statement of opinion
may imply a false assertion of objective fact and therefore fall outside the scope of
the First Amendment’s protection.” Id.
In interpreting what implied assertions of fact could reasonably be drawn
from a stated opinion, a court must once again look to the perspective of the
reasonable reader, with particular focus on the publication’s intended audience.
at 1155.
Unelko, 912 F.2d at 1055. In Unelko, this Court interpreted commentator Andy
Rooney’s general statement that a windshield product “didn’t work” to imply that
the product, Rain-X, “was not invisible, that rain did not disperse on contact, that
Rain-X did not repel bugs and other projectiles, that cleaning was not a snap, and
20
that Rain-X did not increase Rooney’s all-around visibility, safety, and driving
comfort.” Id. This Court further explained that the implicit meaning of a general
statement of opinion can be gleaned from factual development during discovery.
Id. at 1056 (stating that the phrase “it didn’t work” should be interpreted in light of
Rooney’s deposition testimony). Even though Rooney’s implied statements were
themselves subjective, they rested on “a core of objective evidence” and were
therefore actionable. Id.
As
at 1055.
Unelko makes clear, the implied facts doctrine exposes the speaker to
liability even when the speaker’s opinion is stated in vague or general terms. See
also Condit v. National Enquirer, Inc., 248 F.Supp.2d 945, 965 (E.D. Cal. 2002)
(holding that the word “attacks” was actionable even though it was susceptible to
an innocent interpretation). This is particularly true with regard to critiques of
products or services for which no factual basis is provided. “Statements of opinion
to the effect that a competitor’s goods are poor . . . have been held to imply a state
of facts.” 2 Callman on Unfair Competition Trademarks & Monopolies § 11:5 (4th
ed. 2010). Thus, Rooney’s statement that a product for reducing collection of rain
on a car’s windshield “doesn’t work” was actionable because it implied
nondisclosed facts about the basis for that opinion, i.e., that Rooney had used the
product and found that it did not improve visibility. Unelko, 912 F.2d at 1055. A
statement that a doctor “is an incompetent surgeon and needs more training” is
21
actionable because it “implies a knowledge of facts which lead to this conclusion
and further is susceptible of being proved true or false.” Gill v. Hughes, 227 Cal.
App. 3d 1299, 1309 (1991). Oprah Winfrey’s statement that she had “lost
confidence” in the headmistress of Ms. Winfrey’s South African school was
actionable because it implied that as the plaintiff’s superior, Ms. Winfrey knew
undisclosed negative information about her job performance. Mzamane v.
Winfrey, 693 F.Supp.2d 442, 481-82 (E.D. Pa. 2010). And, a statement that a
lawyer was an “ambulance chaser” was actionable because it implied knowledge of
facts that the lawyer solicited business unethically. Flamm
Likewise, in this case Gartner’s placement of a particular product or
company on its Magic Quadrant is actionable even though it is subject to
interpretation by the reader.
, 201 F.3d at 147.
2 MHC
2 There is no First Amendment liability exemption for product reviews. For example, in Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110, 1133 (9th Cir. 2003), this Court found a triable issue in a product disparagement suit against the publisher of the venerable magazine Consumer Reports, which had printed a harsh safety assessment of a popular car. The Court concluded that:
, 544 F.3d at 964 & n.3 (holding that the case
may be taken from jury only when the innocent interpretation is “the only
[A]lthough the dissent provides a plausible view of the evidence-that CU acted in good faith as a skeptical consumer watchdog should-it is not our role, at this stage, to take sides in this way. As we discuss below, there is also another plausible view of the summary judgment record-that CU ‘rigged’ a test to achieve a predetermined result in order to serve its own pecuniary interests.
330 F.3d at 1133. ZL has made similar allegations regarding Gartner’s financial bias and manipulation of its analysis, ER 126-28, and ZL’s allegations similarly must be resolved by a fact finder.
22
reasonable interpretation of the statements” (emphasis in original)). At this stage,
the complaint should withstand a motion to dismiss if a reasonable reader could
view the Reports as falsely implying that Symantec’s products outperform ZL’s by
a substantial margin in terms of objective performance measures. Unelko, 912
F.2d at 1053. After the parties are allowed to take discovery, ZL will furnish
evidence that readers of the Reports do in fact interpret them in this fashion. See
al-Kidd
It makes no difference that the reader of the Gartner Reports could glean a
non-defamatory or non-factual meaning from the Magic Quadrant.
, 580 F.3d at 977 (holding that a complaint withstands a motion to dismiss
if the allegations and judicially noticeable material provide “enough fact[s] to raise
a reasonable expectation that discovery will reveal evidence to prove [the] claim”
(internal quotation marks omitted)).
MHC, 544
F.3d at 964 & n.3. Gartner chose to summarize its analysis of Symantec’s and
ZL’s products in a diagram. The most obvious understanding of the Magic
Quadrant diagram is that it provides a simplified summary of the specific attributes
that are of interest to the reader, including product speed, accuracy, stability,
features, scalability and cost. Presentation of information in this summary fashion
increases its defamatory character, by making any disclaimers less likely to be read
or taken seriously. See Kaelin v. Globe Communications Corp., 162 F.3d 1036,
1041 (9th Cir. 1998).
23
In Kaelin, the Ninth Circuit held that a newspaper headline which implies a
false statement of fact is actionable even if review of the entire article may dispel
the headline’s potentially defamatory meaning. Id. “[N]ot every word of an
allegedly defamatory publication has to be false and defamatory to sustain a libel
action.” Id. at 1040. Portions of a publication—particularly those featured
prominently like headlines—can be actionable on their own because many readers
are unlikely to read any further. Id. In such circumstances, in which the general
tenor of the headline conflicts with the general tenor of the article, the court cannot
decide the question as a matter of law because it is a “question of fact for the jury”
whether “the entirety of the publication . . . clears up any false and defamatory
meaning that could be found on the cover.” Id. at 1041; accord Condit
Accordingly, Gartner cannot hide behind disclaimers and qualifications to
avoid the clear meaning of the Magic Quadrant to its typical audience. Even if
statements buried deep within the Reports or in fine print try to paint the Reports as
mere opinion, that cannot resolve this case as a matter of law.
, 248
F.Supp.2d at 966.
Kaelin, 162 F.3d at
1040-41. Because the Magic Quadrant places Symantec’s software so far ahead of
ZL’s and other vendors’ software, it is difficult to escape the conclusion that
Symantec outperforms other software in every conceivable performance category.
At the very least, a reasonable reader could understand the magnitude of difference
24
as implying the existence of such false facts, notwithstanding Gartner’s technical
disclaimers and qualifications.
It also makes no difference that the Reports combine factual information
with opinions. “[A]n essential component of an opinion is that it be wholly
subjective.” MHC, 544 F.3d at 965 (citation and internal quotation marks
omitted). See also Johnson v. Clark, 484 F.Supp.2d 1242, 1249 (M.D. Fla. 2007)
(holding that “mixed statements of opinion and fact” are actionable); Flentye v.
Kathrein, 485 F.Supp.2d 903, 920 (N.D. Ill. 2007) (“Mixed expressions of fact and
opinion may be actionable if the facts are subject to verification.”); Restatement
(Second) of Torts § 566 cmt. c (explaining that “an expression of a mixed opinion
can itself be a defamatory communication”). If “a reasonable listener could
conclude” that a statement of opinion was founded “in part on an objective factual
basis,” then the question cannot be resolved as a matter of law. MHC, 544 F.3d at
965 (emphasis added). Particularly at the pleading stage, the task of the court “is
not parsing whether a published statement is fact or opinion;” rather the court must
determine “whether a reasonable fact finder could conclude the published
statement declares or implies a provably false assertion of fact.” Overstock.com,
Inc. v. Gradient Analytics, Inc., 151 Cal. App. 4th 688, 701 (2007). Here, the most
natural interpretation of the Reports is that they provide both express and implied
25
assertions of fact. It certainly would not be unreasonable for a fact finder to
conclude that is the case.
C. THE TOTALITY OF CIRCUMSTANCES PRECLUDE DISMISSAL OF THE COMPLAINT
To assist in analyzing whether a reasonable factfinder could view the
statements as making express or implied factual assertions, courts in this Circuit
examine three “totality of circumstances” factors: (1) the “broad context” of the
statement, including the “general tenor of the entire work, the subject of the
statements, the setting, and the format of the work;” (2) the “specific context,”
including “the extent of figurative or hyperbolic language used and the reasonable
expectations of the audience in that particular situation;” and (3) whether the
statement is “susceptible of being proved true or false.” Knievel
1. Broad Context
, 393 F.3d at 1075
(citation omitted). Each of these factors strongly supports the conclusion that the
statements in the Reports are actionable.
The first factor focuses on the setting in which the statement arose, here the
overall structure of the Reports themselves and the identity of the speaker. Id. “If
a statement is published where a reader would expect assertions of fact because of
the context, it is likely to be understood to be, and therefore be treated by a court
as, an assertion of fact.” 1 Robert D. Sack, Sack on Defamation § 4:3.1 (4th ed.
2010). Thus, for example, even though the statement that a lawyer is an
26
“ambulance chaser” is somewhat hyperbolic in tone, it is nonetheless actionable
when appearing in a guide to lawyers known for literal speech. Flamm, 201 F.3d
at 152. This is true because “a reasonable reader would not expect . . . hyperbole
in a straightforward directory of attorneys and other professionals.” Id. Indeed, “it
would not be unreasonable for a reader to believe that the [defendant] would not
have printed such a statement without some factual basis and to conclude that the
statement did indeed state facts about” the plaintiff. Id.
This principle applies with added force to Gartner’s Reports, which the
company holds out as based upon rigorous factual analysis. Gartner encourages its
customers to depend on the information in making crucial enterprise software
purchasing decisions, and its customers pay for and rely upon the Reports for that
very purpose. ER 117-18. Gartner promises to tell its audience “how to buy, what
to buy, and how to get the best return on your technology investment.” ER 118. It
does so while simultaneously trumpeting its Reports as “objective,” “fact-based”
and grounded in a “rigorous mathematical model.” ER 121-22. Gartner has
repeatedly told its readers that Symantec is the only reasonable choice for email
archiving software consumers. Having read this, “it would not be unreasonable for
a reader to believe that [Gartner] would not have printed such a statement without
some factual basis[.]”
Flamm, 201 F.3d at 152.
27
Gartner makes these assertions knowing that a large organization’s purchase
of enterprise software is far more complex than a consumer’s selection of a
particular brand of toothpaste or even the family car. A company’s decision to
partner with a provider of enterprise-level email archiving software will typically
entail a multi-year commitment and a substantial financial investment. If the
purchased software package turns out to be slow, inaccurate, costly, prone to
crashes or incapable of growing with the company, then the enterprise will lose
money and the people who chose the software package will lose their jobs. That is
why companies pay thousands of dollars for Gartner’s analysis and expect that it is
sound and reliable. That is also why a reasonable recipient of the Reports is
unlikely to discount them as mere opinion.
It is well within the margin of reason to conclude that companies that
purchase Gartner’s Reports depend on the company not to provide a stylized
commentary about the products and companies involved, but instead to present the
cold hard facts about the products under discussion. Cf. Partington, 56 F.3d at
1153 (evaluating statements based on understanding that “readers presumably
purchased the book not to read a dry description of the facts but to learn of
Bugliosi’s personal perspective about the trials . . .”). A company that “holds itself
out to its subscribers as having specialized knowledge” and which builds its
“business . . . around developing reader confidence to rely on its opinions as
28
reflecting the truth about [reviewed] companies” can reasonably be viewed as
making actionable factual assessments about the subjects under review.
Overstock.com
Nor can Gartner transform its Reports into pure statements of opinion by the
simple expedient of a fine-print disclaimer. The mere use of the preface “in my
opinion” will not render a statement non-actionable.
, 151 Cal. App. 4th at 706 (holding that statements in a financial
consultant’s report were actionable because the author held itself out as providing
objective analysis of companies’ financial structure and performance).
Milkovich, 497 U.S. at 18-19;
Partington, 56 F.3d at 1156; Yagman, 55 F.3d at 1439. “[S]tatements in a
publication[] do not attain constitutional protection simply because they are
sprinkled with words to the effect that something does or does not ‘appear’ to be
thus and so; or because they are framed as being ‘in our opinion’ or as a matter of
‘concern.”’ Overstock.com, 151 Cal. App. 4th at 703-04. “[W]rapping an article
around a disclaimer that the contents represented a ‘judgment’ does not
conclusively resolve the dispositive question—whether a reasonable fact finder
could conclude that the publication declares or implies a provably false assertion of
fact.” Id. at 704. See also Swengler v. ITT Corp.
Moreover, courts have “reject[ed] the notion that merely couching an
assertion of a defamatory fact in cautionary language such as ‘apparently’ or ‘some
, 993 F.2d 1063, 1071 (4th Cir.
1993).
29
sources say’ or even putting in the form of a question, necessarily defuses the
impression that the speaker is communicating an actual fact.” Overstock. com, 151
Cal. App. 4th at 704 (citation omitted). And, courts have further rejected the
argument that enshrouding a factual implication in “technical, complex, subjective
and debatable” assessments of the facts renders a statement nonactionable. Id.
2. Specific Context
at
706. In short, a statement must be interpreted according to the meaning ascribed
by its audience, not according to legal technicalities and disclaimers. Under this
test, the general context of the Reports demonstrates that they are actionable.
The second factor looks at the intrinsic qualities of the statement itself. Here
again, Gartner’s Reports are presented as fact-based mathematical reviews of
product performance. Any reasonable reader examining the Magic Quadrant
diagram would understand it not as a Rorschach-like random assortment of dots on
a page, but rather as a serious study meant to convey factual information in a
condensed form. See
The Magic Quadrant is decidedly lacking in hyperbole or any other intrinsic
indicator that the Report is meant to be taken non-literally or as artistic prose. This
stands in stark contrast to the typical case in which courts have found that a
ER 121 (recounting statement of a Gartner Vice President
that the company uses a “rigorous mathematical model – we don’t just place
dots”).
30
statement constituted opinion as a matter of law. Cf. Partington, 56 F.3d at 1153-
54 (holding that a trial lawyer’s account of a trial gave rise to an expectation of
non-literal speech because “trial lawyers[] are not known for their modesty”);
Gardner v. Martino, 563 F.3d 981, 988 (9th Cir. 2009) (explaining that the
statements made on a radio talk show had to be evaluated in light of the fact that
show “contains many of the elements that would reduce the audience’s expectation
of learning an objective fact: drama, hyperbolic language, an opinionated and
arrogant host, and heated controversy”); Knievel, 393 F.3d at 1075 (jocular and
juvenile tone of statement was “paramount” if not “dispositive” of court’s
interpretation). Absent “the sort of loose, figurative, or hyperbolic language which
would negate the impression that the writer was serious[],” the statement should
reasonably be construed as setting forth an assertion of fact, or at the very least
implying the existence of a factual basis. Milkovich
3. Susceptibility to Being Proven True or False
, 497 U.S. at 21.
As already explained, the Report’s express and implied statements that ZL’s
products lag far behind Symantec’s and other competitors’ products is readily
subject to factual confirmation. ZL’s products are superior to much higher-rated
vendors’ products in terms of speed, accuracy, completeness of search, accuracy of
search and cost—the attributes that are the focus of the readers of the Reports. ER
116, 130-31. ZL’s products also provide more features and functionality than its
31
competitors, and employ cutting edge search technology. ER 130-131. And, to the
extent that the Reports suggest that ZL serves only a limited market, that too is a
verifiably false statement. In fact, ZL operates in the same customer and
geographic markets as highly-rated Symantec and its software is compatible with a
broader customer base.3
The MQ’s readers pay for Gartner’s fact-based analysis in order to
determine which email archiving software will perform best for their business.
Those same readers are plainly not interested in color commentary regarding the
software industry; they want to know which product is best.
ER 129.
See Rodriguez
3 That Gartner’s negative appraisal of ZL’s product is provably false is underscored by the statement of its analyst, Carolyn DiCenzo, that ZL’s product and Gartner’s product are “the same.” ER 131. This statement was understood to mean that the products performed identically in terms of their features and objective performance. Id. The district court erred in concluding that DiCenzo’s statement was not independently actionable because it contradicted Gartner’s statements in the Reports that Symantec’s products perform far better than ZL’s. ER 106, 150-51 n.2. The statements are actionable precisely because the district court could conclude that they are contradictory. See MHC, 544 F.3d at 964 (“If the district court can assess the truth or falsity of the claim, that seems a strong indication that it was a provably false assertion of fact, and therefore actionable.”). Also, DiCenzo’s statement that the products are “the same” can be proven true or false since ZL’s product performance is far superior to Symantec’s product performance. The DiCenzo statement therefore provides a separate and independent basis for reversal.
, 314
F.3d at 986 (holding that the court must “place itself in the position of the . . .
reader, and determine the sense of meaning of the statement according to its
natural and popular construction” (citation omitted)). Particularly when viewed
32
from the perspective of its readers, the Reports must be read as making assertions
susceptible to being proven true or false.
D. THERE IS NO EXEMPTION FROM DEFAMATION LIABILITY FOR NON-TRANSPARENT ANALYSIS
Below, Gartner argued that even if its statements are false, it is nonetheless
immune from liability because it conceals the facts upon which its conclusions are
based and the specific manner in which it evaluated the concealed facts to arrive at
its false conclusions. In fact, the opposite is true. It is well-settled in this Circuit
that lack of transparency increases the actionability of a statement of opinion.
A speaker who publishes damaging opinions may protect himself from
defamation liability by being transparent regarding the factual basis for the
opinions. Gardner, 563 F.3d at 987 (“[W]hen a speaker outlines the factual basis
for his conclusion, his statement is not defamatory and receives First Amendment
protection.”). If the underlying facts are disclosed, the speaker’s conclusion
becomes “an interpretation of the facts equally available to [the speaker] and to the
listener” rather than “an assertion of objective facts.” Id. at 988. If the underlying
facts are true, then the speaker cannot be held liable. “A simple expression of
opinion based on disclosed . . . nondefamatory facts is not itself sufficient for an
action of defamation, no matter how unjustified and unreasonable the opinion may
be or how derogatory it is.” Yagman, 55 F.3d at 1439 (citing Restatement
(Second) of Torts § 566, cmt. c). This principle makes eminent sense, as it allows
33
speakers to issue the most stinging of critiques without having to fear liability for
defamation. All the speaker has to do is provide the audience with the facts, and
let the audience decide whether the critique is fair. Id.
However, a speaker like Gartner that conceals the basis for its analysis is not
entitled to this same protection. The reason for this principle is also clear: were the
rule otherwise, a clever defamer could always escape responsibility for highly
damaging statements by couching the statements in suggestive innuendo and
thereby allowing the listener to draw the obvious, defamatory conclusion.
(“[A]n opinion which is
unfounded reveals its lack of merit when the opinion-holder discloses the factual
basis for the idea; readers are free to accept or reject the author’s opinion based on
their own independent evaluation of the facts.” (internal quotation marks omitted)).
Cf.
Thus the statement “I think Jones is an alcoholic” is actionable because the
speaker’s failure to elaborate has allowed the listener to assume the worst about
Jones, such as that “Jones stops at a bar every night after work and has three
Restatement (Second) of Torts § 566 cmt. c (“[I]f the recipient draws the
reasonable conclusion that the derogatory opinion . . . must have been based on
undisclosed defamatory facts, the defendant is subject to liability.”). In fact, when
the speaker conceals the underlying facts and analysis, he makes the statement
more harmful by inviting the audience to draw the most damaging and false
conclusions.
34
martinis.” Yagman, 55 F.3d at 1439. The statement is actionable because the
listener “will reasonably understand the author to be implying he knows facts
supporting his view[.]” Id. It makes no difference whether the speaker’s definition
of “alcoholic” is three martinis every night or six martinis every other night.
Regardless of the thought process, if the listener could perceive an underlying
factual basis that is untrue, then the opinion is defamatory. See id. However,
when the speaker discloses his thought process in a manner that dispels the listener
of the defamatory meaning, then the very same opinion becomes non-actionable.
Yagman, 55 F.3d at 1439. It is therefore not actionable to state: “I have seen
[Jones] . . . only twice, in his backyard around 5:30 seated in a deck chair . . . with
a drink in his hand. I think he must be an alcoholic.” Id.; Flowers
A speaker cannot escape liability for making false statements by couching a
damaging implicit statement of fact as an opinion. Nor is there any loophole for
speakers that conceal the basis for their opinion even while suggesting an
underlying defamatory basis. The law takes a pragmatic approach to such
statements, and at bottom requires that they be interpreted as would a reasonable
listener in light of the overall context. At the motion to dismiss stage, the question
is whether any reasonable factfinder could understand the statement in question to
, 310 F.3d at
1128 (explaining that a statement is not actionable if the only reasonable
construction of the statement is a non-defamatory one).
35
make or imply an assertion of objective fact. MHC
IX. CONCLUSION
, 544 F.3d at 964. In spite of
their technical disclaimers and hidden reasoning, the Gartner Reports do exactly
that. The motion to dismiss should have been denied.
For all the foregoing reasons, Appellant respectfully requests that the
judgment of the district court be reversed, and that this action be remanded for
further proceedings with regard to ZL’s defamation and trade libel claims.
DATED: August 16, 2010 KERR & WAGSTAFFE LLP
By:MICHAEL K. NG
/s/ Michael Ng 5
Attorneys for Plaintiffs-Appellants ZL TECHNOLOGIES
57834_2.doc
CERTIFICATION OF COMPLIANCE WITH WORD LIMIT
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure
and Ninth Circuit Rule 32-1, I certify that this Appellant’s Opening Brief is
proportionately spaced, has a typeface of 14-point, proportionally-spaced font, and
contains fewer than 8,826 words.
DATED: August 16, 2010 KERR & WAGSTAFFE LLP
By MICHAEL K. NG /s/ Michael Ng 5
Attorneys for Plaintiffs-Appellants ZL TECHNOLOGIES
STATEMENT OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, Appellant ZL Technologies, Inc.
states that there are no related cases pending in this Court.
DATED: August 16, 2010 KERR & WAGSTAFFE LLP
By MICHAEL K. NG /s/ Michael Ng 5
Attorneys for Plaintiffs-Appellants ZL TECHNOLOGIES